Citation Nr: 21003995 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 10-33 741 DATE: January 25, 2021 ORDER A total disability rating due to individual unemployability (TDIU), from August 14, 2007 to October 18, 2016, is granted, subject to the laws and regulations governing payment of monetary benefits. The appeal for a TDIU from October 18, 2016 to January 25, 2017 is denied. FINDINGS OF FACT 1. The evidence of record favors a finding that the Veteran’s service-connected disabilities prevented her from securing or following gainful employment for the period from August 14, 2007 to October 18, 2016. 2. From October 18, 2016 to January 25, 2017, the Veteran’s service-connected disabilities result in a combined disability rating of 100 percent and none of the disabilities alone rendered her unemployable. CONCLUSIONS OF LAW 1. The criteria for a TDIU from August 14, 2007 to October 18, 2016, are met. 38 U.S.C. § 1155, 5110 (2012); 38 C.F.R. §§ 3.400, 4.16(a) (2019). 2. The criteria for a TDIU from October 18, 2016 to January 25, 2017 are not met. 38 U.S.C. § 1155, 5110 (2012); 38 C.F.R. §§ 3.400, 4.16(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training from February 1995 to June 1995. This appeal was previously remanded in December 2012, November 2013, December 2014, November 2015, and June 2017 because it was intertwined with other remanded claims. During the pendency of the appeal, the agency of original jurisdiction (AOJ) granted TDIU from January 25, 2017. As this did not cover the entire period on appeal, it was not a complete grant of the benefit sought. The Board remanded the appeal in November 2020 to address the period prior to January 25, 2017. Entitlement to a TDIU prior to January 25, 2017 Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16 (a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In Faust v. West, 13 Vet. App. 342 (2000), the Court defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). VA regulations also provide that marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). VA regulations also provide that for the purposes of the section on TDIU, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. In this case, the Veteran raised a claim for TDIU in October 2007. At that time, a claim was already pending for an increased rating for the Veteran’s right knee, which was filed in August 2007. As a claim for TDIU is part and parcel of a claim for increased rating, the Board finds that the date of the claim for TDIU should be considered as August 14, 2007, the date of the claim for increased rating. During the pendency of the appeal for the increased rating and TDIU, the Veteran filed another claim for TDIU in January 2017. As noted above, the AOJ granted the claim from January 25, 2017, the date of the formal claim for TDIU. However, as TDIU had been pending since the August 2007 claim for increased rating, the grant of TDIU was not a full grant of the appeal. a. Period from October 18, 2016 to January 25, 2017 For the period from October 18, 2016 to January 25, 2017, the Veteran’s service-connected disabilities had a combined rating of 100 percent. The Board acknowledges that TDIU may still be warranted if the Veteran’s unemployability is due to a specific disability that is not rated 100 percent disabling in order to qualify for special monthly compensation under 38 U.S.C. § 1114(s). See Bradley v. Peake, 22 Vet. App. 280 However, in this case, the Veteran has not attributed her unemployability to a particular service-connected disorder. Rather, the Veteran attributes her unemployability to her service-connected knees and back disabilities as well as all service-connected disabilities. See e.g. October 2007 statement (TDIU due to service connected conditions) and January 2017 claim form (due to knees, back, and scar). In a June 2013 statement the Veteran reported that she lost her job due to all of her service connected conditions. As the evidence does not indicate that one particular service-connected disability resulted in unemployability, the Board finds that the claim for TDIU for the period from October 18, 2016 to January 25, 2017 is moot. b. Period prior to October 18, 2016 Prior to October 18, 2016, the Veteran was in receipt of service connection for the following disabilities: low back arthritis (20 percent effective August 14, 2007), right knee instability (30 percent effective November 1, 1998), right knee limitation of flexion (10 percent August 14, 2007), depressive disorder (30 percent effective October 25, 2007), and left knee limitation of flexion (10 percent August 14, 2007). The Veteran had an overall combined rating of 60 percent from August 14, 2007 and 70 percent from October 25, 2007. As discussed above, disabilities affecting a single body system, such as the orthopedic system may be considered “one disability” in order to meet the schedular requirements. In this case, the Veteran’s low back and bilateral knee disabilities are all of the orthopedic system and when combined, amount to a rating of 60 percent, since August 14, 2007. As such, the schedular requirements for TDIU are met from August 14, 2007. The Board acknowledges that the requirements were not met for the “look back” period prior to August 14, 2007 but for the reasons explained below, the Board finds that referral for extraschedular TDIU during this period is not warranted. Thus, the question remains whether the Veteran was unable to maintain substantially gainful employment for the period prior to October 18, 2016. For the reasons explained below, the Board finds that she was unable to maintain substantially gainful employment and that a TDIU is warranted. During the pendency of the appeal, the Veteran submitted a private vocational assessment dated in December 2018. The vocational expert reviewed the file and cited specific medical records to support the finding that the Veteran was unable to maintain substantially gainful employment. The vocational expert also acknowledged that VA examiners had indicated that the Veteran may still be able to maintain limited employment. The vocational expert explained that the Veteran’s service-connected conditions affected her ability to demonstrate workplace reliability such that she was unable to secure and follow substantially gainful occupation. The expert noted the Veteran’s education that she had an Associates’ of Arts degree in accounting and experience working as a collections clerk prior to 2003. The expert noted that during the August 2007 VA examination, the Veteran reported that her knee locked several times per week and that she had severe flare-ups every two to three weeks, which lasted one to two days each time. The expert also noted that during the June 2010 VA examination, the Veteran reported severe weekly flare-ups and that her ability to perform usual activities was limited to a moderate to severe degree. The private vocational expert explained that reliability is the most important factor in performing any level of work activity. The expert opined that the level of reduced ability that the Veteran’s disability provided her, compromised her ability in that regard such that she was unable to secure and follow a substantially gainful occupation. The expert explained that a person cannot effectively perform any kind of work activity if she cannot reliably get to a job when scheduled to be there or cannot stay at the job for the entire scheduled shift, as would be the case here based on the severe flare-ups of the Veteran’s orthopedic disabilities. The Board places a high probative value on the expert opinion as the vocational expert reviewed the file, cited the Veteran’s reports to VA medical examiners to support the opinion, and offered clear explanation for the opinion rendered. The Board finds it significant that of the VA examination reports cited with respect to reports regarding flare-ups, none of the VA examiners indicated that the Veteran was malingering in her description of the severity of her flare-ups. The Board observes that when the AOJ granted TDIU in August 2020, the AOJ based the effective date on the January 25, 2017 claim date. See August 2020 rating decision. The AOJ did not indicate that the severity of the Veteran’s disabilities materially increased as of that date. The Board finds that the functional impact of the Veteran’s disabilities was substantially the same for the period prior to January 25, 2017 as it was thereafter. In this regard, the Veteran had bilateral knee flare-ups that were severe, every two to three weeks in August 2007 and the flare-ups lasted for 1-2 days. See August 2007 VA examination report. During the June 2010 VA examination, the Veteran reported severe flare-ups of the knees, occurring weekly and lasting for hours. In a January 2013 VA back examination, the Veteran described flare-ups as difficulty doing overhead activities as well as difficulty doing household chores. Range of motion undoubtedly worsened over time, but knee and back flare-ups were substantially the same severity for the entire period prior to January 25, 2017 as they were after January 2017. In this regard, during the January 2017 VA knee examination, she reported that knee pain in both knees increased with intensity with standing and walking. At that time, she also reported functional impairment as decreased endurance to standing and walking due to pain in both knees. During a January 2017 VA back examination, the Veteran described flare-ups of the back as increased back pain related to prolonged supine lying, sitting, standing and/or walking. She also reported that bending at the trunk and rotating her trunk also increased the intensity of her back pain. During a September 2018 VA knees examination, the Veteran reported flare-ups in the knees with activity resulting in pain rated 7 or 8 out of 10. All of the VA examination reports indicate that the Veteran wore a knee brace to support her right knee. Moreover, the Board finds that the Veteran’s service-connected psychiatric disorder also contributed to the Veteran’s unemployability as it resulted in decreased concentration during the entire period on appeal. The Board also acknowledges that for part of this time, the Veteran reported working part time as a self-employed travel agent. During a February 2010 VA examination for a nonservice connected disorder, the Veteran reported that she was self-employed, part time as a travel agent. The Board is satisfied that the Veteran’s self-employment as a travel agent was no more than marginal employment. There is no indication that the Veteran earned income above the poverty threshold when she worked part time as a self-employed travel agent in 2010. For the above reasons, the Board resolves doubt in favor of the Veteran and finds that a TDIU is warranted from August 14, 2007, the date of the claim for increased rating for the right knee. Pursuant to 38 C.F.R. § 3.400(o), the Board has considered whether TDIU is warranted during the one-year period prior to the date of the claim for increased rating but finds that it is not. In this regard, the Veteran’s unemployability did not begin during the one-year period prior to the August 2007 claim. The vocational expert opined that the Veteran had been unemployable since 2003. The Veteran asserts a similar estimation. In the Veteran’s January 2017 TDIU claim form, the Veteran reported that she last worked full time in January 2003 and that she became too disabled to work in January 2003. Based on the foregoing, the Board finds that the Veteran’s unemployability began more than one year prior to the date of the claim for increased rating in 2007. As such, the effective date for the TDIU should be the date of the claim for increased rating – August 14, 2007. Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Donna D. Ebaugh, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.